EPF Concreting P/L v Hall (Application)

[2012] QDC 350

DISTRICT COURT OF QUEENSLAND

CITATION:

EPF Concreting P/L v Hall [2012] QDC 350

PARTIES:

EPF CONCRETING PTY LTD
(applicant)

v

LUKE J HALL
(respondent)

FILE NO:

BD 2991/2012

JURISDICTION:

Civil

PROCEEDING:

(Originating) Application

ORIGINATING COURT:

Brisbane Registry

DELIVERED ON:

27 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2012

JUDGE:

Dorney QC, DCJ

ORDERS:

It is ordered that:

1.   The application filed 14 August 2012 is dismissed.

2.   The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

Application – attempt to bring an application in a proceeding after Originating Application dismissed – “new” application in substantially identical terms – treated as further Originating Application – dismissed on same grounds of prematurity

COUNSEL:

Mr Reid (with leave to represent the Applicant)
R W O’Regan for the Respondent

SOLICITORS:

Applicant represented by Mr Reid
Gillis Delaney Solicitors for the Respondent

Introduction

1. On 31 July 2012 the applicant, who is also the appellant in appeal D1155/2012 in this Court –the hearing of which was held contemporaneously with this application – sought an order pursuant to a filed Originating Application, essentially, that pursuant to the Court Funds Act 1973 (Qld), the District Court make an order “that no payment, transfer, delivery, sale or other dealing take place of the money referred to in Queensland Courts Official Receipt number 003469540; payment particulars set out therein being: Magistrates Court, Other MC fees; Coolangatta; 154/10 EPF Concreting P/L v Hall – Security Deposit until further order of this Court such order to take effect on giving by the applicant of notice to the Registrar of this restraining order affecting the said money.”

Course of events

1. As the application required, it was returnable before this Court on 1 August 2012.  On that date, Clare SC DCJ dismissed the application and ordered costs against the applicant.  The order of 1 August 2012 was filed on 20 September 2012.

1. Undeterred, the applicant filed a “new” Application – although it is stated be (in the File Index) as an “application for directions” - on 14 August 2012.  This further application sought, in paragraph 1, a substantially identical order to that referred to above in paragraph 3 of the Originating Application filed 31 July 2012.  This new Application also sought further orders. Although the return date for the new Application was 24 August 2012, there was a consent adjournment of the application, made on 23 August 2012, to 27 August 2012.

1. Concurrently with the abovementioned appeal, the matter came on before me on 27 August 2012.

1. At that time, I indicated a preliminary view that, especially given the substantial identity between the orders sought both before Clare SC DCJ and me, I would be inclined to dismiss the Application.  Nevertheless, I reserved the final decision on the matter until hearing all matters relevant to the appeal, as well.

Substance of application

1. Although many words are used, the substance of this Application is that the moneys paid into court (regarding the proceeding that became the subject of the mentioned appeal) be frozen until the appeal is concluded.

1. The earlier decision of this court was based upon the premature nature of the application.

1. To understand that concern, note must be taken of the fact that an application (which was already returnable on 17 July 2012 in the Southport Registry of the Magistrates Court filed by the respondent to the appeal) seeking that that sum be paid out had been adjourned on 17 July 2012 to 7 August 2012. It has now been further adjourned, from time to time, as this appeal has remained reserved.

1. There was nothing presented to this Court on the contemporaneous hearing of this Application with the relevant appeal which in any way suggested that the Magistrates Court would actually proceed to determine the defendant/respondent’s application for payment out.  In such circumstances, I also agree that it is premature to consider this Application at this time. There is nothing which suggests any imminent jeopardy of the appellant’s rights should it succeed on appeal.

1. More importantly, the Application filed 14 August 2012 can only be taken to be a completely new application since the Originating Application filed 31 July 2012 has been “dismissed” and no appeal has been brought from that decision. But rather than simply determine that the Application is a nullity, I will, although the later Application has been filed in the same proceeding, treat it as a new proceeding begun by Originating Application and dismiss it in its own right.

1. The Magistrates Court at Southport can, following the handing down of the decision in the appeal and the decision in this Application, then proceed to consider, in its own right, the application there.

Orders

1. Consequently, the orders that I intend to make are as follows:-

1.       the application filed 14 August 2012 be dismissed; and

2.       the applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.